[HISTORY: Adopted by the Conservation Commission
of the Town of Belchertown 11-5-1991, effective 1-1-1992. Amendments noted where applicable.]
A.
The purpose of these regulations is to clarify and
define the 1989 Belchertown Wetlands Protection Bylaw[1] (hereafter referred to as the "bylaw") administered by
the Belchertown Conservation Commission (hereafter "Commission").
The bylaw identifies and protects certain wetland resource areas and
the interests the general public has in these areas. These regulations
establish a uniform process by which the Commission can review and
regulate activities that affect the resource areas and interests identified
by the bylaw.
B.
In addition, the Commission wishes to provide clear
guidance to applicants regarding the policies that the Commission
has determined are necessary to protect wetland resource areas, based
on Belchertown's particular topography and hydrology, by the special
value these resource areas have to Belchertown and to neighboring
communities and by the Commission's past experience with wetlands
protection.
A.
No net loss policy. It is the policy of the Belchertown
Conservation Commission to follow the "no net loss" guidelines set
forth by the Massachusetts Department of Environmental Protection.
Therefore, applicants who propose to alter resource areas under the
Commission's jurisdiction must:
B.
No net change in stormwater runoff. It is the policy
of the Belchertown Conservation Commission to require applicants to
demonstrate that no significant change in off-site runoff will result
from proposed work. Because increased runoff impacts land downstream
and reduces natural groundwater recharge, the Commission may require
measures (such as stormwater detention basins) to prevent increased
runoff. Direct discharge of runoff into a resource area will not be
allowed.
C.
Resource areas.
(1)
The Conservation Commission has determined that certain
additional areas of jurisdiction are significant to the protection
of interests identified in the Belchertown Wetlands Bylaw.
(2)
In addition, it is the policy of the Commission to
advise applicants on three nonregulated wetland resource areas:
(3)
The Commission will make every effort to identify
these areas at the site, will recommend locating them on the plans,
will encourage applicants to avoid impacts to these areas and will
suggest possible measures to mitigate unavoidable impacts with respect
to drainage and flood control.
D.
Vegetated buffer strip. Development proposed in the
buffer zone can negatively impact the abutting resource area(s). Negative
impacts, both from the construction and use phases of the project,
can include erosion, siltation, loss of pollution attenuation, loss
of groundwater recharge, reduced water quality and loss of wildlife
habitat. A twenty-five-foot strip of continuous, undisturbed, indigenous
vegetative cover along the resource area boundary within the one-hundred-foot
buffer zone shall be maintained, where practicable, in order to protect
water quality, improve water recharge, reduce erosion and pollution
to the adjacent wetland resource areas and provide wildlife habitat.
E.
Request for determination versus notice of intent.
Many times applicants are confused regarding when to file a request
for determination and when to file of a notice of intent for work
in the buffer zone. For a project to be issued a negative determination,
the Commission must be assured that the potential for alteration of
a resource area is so insignificant as to not require the oversight
provided by an order of conditions and subsequent certificate of compliance.
Therefore, the Commission may typically consider issuing a negative
determination to projects that meet the following minimum criteria:
(1)
There is no alteration of a wetland resource area.
(2)
There is less than 1,000 square feet of alteration
in the buffer.
(3)
No work will occur within 50 feet of a wetland resource
area.
(4)
Leach field of a septic system is 100 feet from resource
area.
(5)
A plan is included for permanent stabilization, including
loaming, seeding and mulching.
(6)
Erosion-control measures are maintained until permanent
vegetation is established.
The following are the values under the Belchertown
Wetlands Bylaw:
A.
Protection of public and private water supply.
B.
Protection of groundwater and groundwater quality.
C.
Protection of surface water and surface water quality.
D.
Flood control.
E.
Storm damage prevention.
F.
Prevention of pollution.
G.
Protection of fisheries.
H.
Protection of wildlife habitat.
I.
Erosion and sedimentation control.
J.
Storm drainage.
K.
Protection of agriculture.
L.
Protection of aquaculture.
M.
Recreation.
A.
Areas subject to jurisdiction under the local bylaw.
Except as permitted by the Conservation Commission or as provided
for in the bylaw, no person shall remove, fill, dredge, build upon
or alter the following resource areas or within 100 feet of these
resource areas, an area known as the "buffer zone to the resource
areas":
(1)
Any freshwater wetland as determined by vegetational
community, soil composition and/or hydrologic regime, including isolated
wetlands, and any marsh, wet meadow, bog or swamp.
(2)
Any pond, lake, river and any perennial or intermittent
stream.
(3)
Any land under such waters.
(4)
Any bank or beach.
(5)
Any land subject to flooding or inundation by groundwater,
surface water or storm flowage, including ephemeral pools, vernal
pools and kettle holes.
B.
Activities subject to regulation under the bylaw.
(1)
Activities within the resource areas. Any activity proposed or undertaken within an area specified in Subsection A which, in the judgment of the Commission, will remove, fill or alter an area subject to protection under the bylaw is subject to regulation under the bylaw and requires the filing of an application for permit (§ 290-7D).
(2)
Activities within the buffer zone. Any activity proposed or undertaken within 100 feet of an area specified in Subsection A(1) through (5) (hereinafter called the "buffer zone") which, in the judgment of the Commission, will alter an area subject to protection under the bylaw is subject to regulation under the bylaw and requires the filing of an application for permit.
(3)
Activities outside the areas subject to protection
and the buffer zone. See 310 CMR 10.02(c).
C.
Where natural vegetation is absent as a result of
mowing, grazing or other disturbance, the presence of hydric soils
(soils that are annually saturated, as evidenced by the observed groundwater,
soil gleying or soil mottling within 18 inches of the surface) shall
provide positive determination of jurisdiction. In cases where natural
vegetation is absent as a result of filling or draining, historic
evidence and record may provide positive determination of jurisdiction.
A.
Burden of proof and going forward. It is the applicant's
responsibility to note those requirements contained in these regulations
which are in addition to those set forth in 310 CMR 10.03.
B.
Incorporation. All of the procedures and requirements
set forth in the Wetlands Protection Regulations of 310 CMR 10.00
et seq. are hereby incorporated and made a part of these regulations,
except where they differ from or depart from these regulations. Where
these regulations differ from the state regulations, they shall take
precedence over the state regulations. The applicant should first
address the regulations at 310 CMR 10.00 et seq. and then supplement
them with the Belchertown Wetlands Regulations.
C.
Title V.
(1)
Preamble. The State Environmental Code (310 CMR 15.00
et seq.), administered locally by the Belchertown Board of Health,
is a minimal public health regulation that may be supplemented at
the local level. Where they concern septic-derived contaminants, the
Belchertown Wetlands Regulations complement local health regulations,
which are independently authorized and administered.
(2)
Septic system location. Within the area of the Commission's
jurisdiction, a septic system is considered to be properly sited only
if all of the following conditions are met:
(b)
Setback.
[1]
The leaching facility of a disposal system is
set back at least 100 feet from a resource area defined under the
bylaw, as required by local Board of Health regulations, except:
[2]
In these instances, if the proposed leaching
facility setback is greater than 50 feet and receives Belchertown
Board of Health approval, the Commission will presume that the design
meets requirements for effluent impacts, and the Commission will only
review construction impacts. If the proposed leaching facility setback
is less than 50 feet from a resource area under these regulations,
Commission review will cover both effluent and construction impacts.
[3]
The setback distance is to be determined as
specified in 310 CMR 10.03(3). The Commission shall determine the
edge of the resource area for the Board of Health upon request.
D.
Presumption concerning point source discharge. See
310 CMR 10.03(4).
F.
Presumption concerning application of herbicides.
See 310 CMR 10.03(6).
G.
Fees. Fees shall be the same as 310 CMR 10.03(7),
except that a request for determination of applicability for any lot
other than a single-family lot, or for work on any lot other than
a single-family lot, shall be $50.
H.
Savings. Should any portion of these regulations be
declared invalid by a decision of the court, the legislature or other
body having jurisdiction, the remainder of these regulations shall
remain in full force and effect.
I.
Reservation. These regulations should not be construed
to limit the authority under the Belchertown Wetlands Bylaw. The Commission
reserves the right to act in a manner consistent with the bylaw upon
any matter within its jurisdiction.
J.
Effective date. The effective date of these regulations
shall be January 1, 1992. These regulations apply to all applications
made on or after the effective date.
The definitions applicable to the Belchertown
Wetlands Bylaw shall be the same as set forth in 310 CMR 10.00 et
seq., except for the following modifications to those definitions
and additional definitions:
To change the condition of any area subject to jurisdiction
under the bylaw. Examples of alterations include, but are not limited
to, the following:
Removal, excavation or dredging of soil, sand,
gravel or aggregate materials of any kind.
Changing of preexisting drainage characteristics,
flushing characteristics, salinity distribution, sedimentation patterns,
flow patterns or flood-retention characteristics.
Drainage or other disturbance of water level
or water table.
Dumping, discharging or filling with any material
which may degrade water quality.
Placing of fill, or removal of material, which
would alter elevations.
Driving of piles, erection or repair of buildings
or structures of any kind.
Placing of obstructions or objects in water.
Destruction of plant life, including cutting
of trees.
Changing water temperature, biochemical oxygen
demand or other physical, chemical or biological characteristics of
surface and ground water.
Excavation for the purpose of percolation or
deep hole testing or the crossing of a resource area with heavy equipment
for this purpose.
Any activities, changes or work which may cause
or tend to contribute to pollution of water or groundwater.
That area of land extending 100 feet horizontally outward from the boundary of any resource area described in § 290-4 of these regulations.
An isolated depression or closed basin which temporarily
confines water during periods of high water table and high input from
spring runoff, snowmelt or heavy precipitation and serves as vernal
pool habitat. It is an essential breeding site for certain amphibians
which require isolated areas that are generally flooded for at least
two continuous months in the spring and/or summer and are free from
fish predators. Most of these amphibians remain near the breeding
pool during the remainder of the life cycle. Many reptiles, birds
and mammals also feed here.
An area of at least 5,000 square feet where groundwater,
flowing or standing surface water or ice supports a community composed
of at least 50% wetland plant species as included or identified in
generally accepted scientific technical publications.
Any open body of freshwater, either naturally occurring or
man-made by impoundment, with a surface area observed or recorded
within the last 10 years of at least 5,000 square feet and which is
never without standing water due to natural causes, except during
periods of extended drought. For the purposes of this definition,
"extended drought" shall mean any period of four or more months during
which the average rainfall for each month is 50% or less of the ten-year
average for that same month. Basins or lagoons which are part of wastewater
treatment plants shall not be considered ponds, nor shall swimming
pools or other impervious man-made retention basins.
A measure that is available and capable of being done after
taking into consideration cost, existing technology and logistics
in light of overall project purposes.
A continuous buffer strip, undisturbed and in its natural
state, between development activities in the buffer zone and the resource
area to be protected.
Those uses and facilities which require direct access to,
or location in, inland waters and which therefore cannot be located
away from those waters.
The following procedures shall apply to all
filings under the Belchertown Wetlands Bylaw (unless specifically
stated).
 |
A.
Time periods. See 310 CMR 10.05(1).
B.
Actions by Conservation Commission. See 310 CMR 10.05(2).
C.
Request for determination of applicability (RDA).
(1)
Explanation. Any person who desires a written determination
as to whether the bylaw applies to an area, or work to be performed
in an area, shall submit a written request to the Commission. This
request, called a "request for determination of applicability," shall
include a description of the area and/or work to be performed and
maps/plans as appropriate.
(2)
Filing procedure. It is the applicant's responsibility
to provide all of the information required for this review. The applicant
must complete the combination of filing form (Form A)[1] and all information on the request for determination.
(a)
Return the original and one copy by certified
mail or hand delivery to:
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Belchertown Conservation Commission
Lawrence Memorial Town Hall
2 Jabish Street
Belchertown, MA 01007
|
(b)
Mail a copy to the landowner, when the applicant
is not the landowner, and:
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DEP Western Regional Office
Division of Wetlands and Waterways Regulation
State House West, 4th Floor
436 Dwight Street
Springfield, MA 01103
|
(c)
Include an accurate description of the location
(including Assessor's Map and lot number), the boundaries of the proposed
work, all structures and the approximate distance to wetlands, water
bodies or other resource areas to be protected.
(d)
When considering filing a request for determination
for work in the buffer zone, an applicant must assure the Commission
that the potential for alteration of a resource area is so insignificant
as not to require the oversight provided by an order of conditions
and subsequent certificate of compliance.
[1]
Therefore, the Commission may typically consider
issuing a negative determination when a project meets the following
minimum criteria:
[a]
There is no alteration of a wetland resource
area.
[b]
There is less than 1,000 square feet of alteration
in the buffer.
[c]
A fifty-foot undisturbed, vegetated buffer strip
is left between the proposed work and the resource area.
[d]
There is less than five-percent slope toward
the resource area.
[e]
Leach field of a septic system is sited at least
100 feet from any wetland resource area.
[f]
A plan for permanent stabilization is included:
loaming, seeding and mulching.
[g]
Erosion-control measures are maintained until
permanent vegetation is established.
[1]
Editor's Note: Form A is available in the
office of the Conservation Commission.
(3)
Public hearing. The Commission shall hold a public
hearing on the request for determination within 21 days of receipt
of the request. Public notice shall be provided in the Belchertown
Sentinel or other local paper at the applicant's expense. The Commission
shall issue a written determination within 21 days from receipt of
the request.
(a)
Prior to making a determination, the Commission
may require the submission of additional data deemed pertinent to
the determination and shall inspect the property for which the request
was made. The Commission's determination shall be issued on Form B[2] and may be combined with a determination made under the
Wetlands Protection Act[3] and sent to the Massachusetts Department of Environmental
Protection.
(b)
Resource areas will be identified based on their
definitions as provided in these regulations. In cases where the natural
vegetative community has been disturbed by removal of the vegetative
cover, the Commission may determine the boundary of a freshwater wetland
based on the presence of hydric soils or may defer determination of
a wetland boundary until the natural vegetation has regrown.
(c)
If a positive determination is issued, the applicant
must file an application for permit. A positive determination may
be issued to delineate the boundaries of a wetland when the area is
determined to be under jurisdiction and when the work requires a permit.
(d)
If a negative determination is issued, it means
that the area is not subject to jurisdiction or that the work will
not alter an area subject to protection. In appropriate situations,
the Commission may require the recording of a negative determination.
(e)
If the application for a request for determination
of applicability is incomplete, the request must be resubmitted or
a positive determination will be issued due to lack of sufficient
information.
(f)
The Commission may defer action on a request
when snow cover makes the determination of resource area boundaries
unfeasible. Under these circumstances, the applicant will be advised
to request an extension, and the Commission shall continue the public
hearing and make a determination at the first available opportunity.
If the applicant refuses to request an extension, upon majority vote
of the Commission, a positive determination may be issued.
D.
Application for permit.
(1)
Explanation. The role of the Commission is that of
a reviewing agency. It is the applicant's responsibility to provide
all of the information required in the application for a permit necessary
for proper review. It is in the applicant's interest to submit as
complete and accurate a description of the project as possible to
ensure that requests for additional information do not result in an
unnecessary delay.
(2)
Filing procedure. An application for permit consists
of the completion of the combination filing form (Form A), completion
of a notice of intent form [310 CMR 10.05(4)] and/or completion of
Form C of the Belchertown Wetlands Regulations, depending upon whether
the resource area to be altered is under state jurisdiction or only
under local jurisdiction.[4]
(a)
An original and one copy of the application
for permit and accompanying plans and data shall be sent by mail or
hand delivered to:
|
Belchertown Conservation Commission
Lawrence Memorial Town Hall
2 Jabish Street
Belchertown, MA 01007
|
(b)
The applicant shall send two copies of the notice
of intent/application for permit and accompanying plans and data to:
|
DEP Western Regional Office
Division of Wetlands and Waterways Regulation
State House West, 4th floor
436 Dwight Street
Springfield, MA 01103
|
[4]
Editor's Note: Forms A and C are available
in the office of the Conservation Commission.
(3)
Other permits. The applicant is required to obtain
or apply for all other permits, variances and approvals required by
any other applicable statute, bylaw or regulation prior to, or concurrently
with, filing an application under the bylaw. This requirement shall
include only those approvals which are obtainable at the time the
application is filed.
(4)
Submission requirements. For an application to be
reviewed, a completed combination of filing form (Form A), notice
of intent and/or Belchertown Wetlands Regulations Form C must be submitted,
along with a site plan (scale of one inch equals not more than 50
feet). Following receipt of the above information, the Commission
will schedule a site visit to view the proposed project in the field.
For the Commission to complete its visit, wetlands must be flagged
and the project staked 10 days prior to the public hearing.
(a)
Features to be shown on the plan:
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Item No.
|
Feature
| |
|---|---|---|
|
1
|
Title box: date, owner, scale and North arrow
| |
|
2
|
Assessor's reference: map, section, parcel and
lot
| |
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3
|
Engineer's stamp and signature, when required
| |
|
4
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Boundaries of all resource areas as defined
by the Belchertown Wetland Regulations
| |
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5
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One-hundred-foot buffer from resource areas
| |
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6
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Location, extent and area of all present and
proposed structures and paved areas
| |
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7
|
Limit of work (construction envelope)
| |
|
8
|
Location of temporary erosion and sedimentation
control measures
| |
|
9
|
Distance (100 feet minimum) of leaching facility
from resource areas, § 290-5C(2)(b)[1][a] and [b]
| |
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10
|
Existing contours
| |
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11
|
Proposed new contours
| |
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12
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Soil characteristics in representative portions
of the site, including characteristics of hydric soils and depth of
peat and muck in wetlands; sampling sites shall be specified
| |
|
13
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The maximum groundwater elevation at the period
of the year when the groundwater table is at its highest elevation,
including calendar dates of measurements, samplings and percolation
tests, if any
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14
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Location of resource areas to be filled or altered
| |
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15
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Amount (square feet) of filled or altered resource
areas
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16
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Location of replacement areas
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17
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One-hundred-year floodplain, with elevations
| |
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18
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Amount of fill in floodplain
| |
|
19
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Location of compensatory storage areas
| |
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20
|
Cross sections showing slope, bank and bottom
treatment of each watercourse to be altered
| |
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21
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Existing natural drainage patterns and proposed
alterations
| |
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22
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Drainage easements and ways
| |
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23
|
Location of proposed and existing water detention
areas and all existing and proposed storm drainage pipes
| |
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24
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Ditches, structures, culverts and outfalls,
fully described with information on inverts, slopes, materials, entrance
and outlet conditions, bedding in unstable soils, details of drainage
structures and endwalls and other standard engineering data on such
work
| |
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25
|
Details of storm drainage outlets showing no
direct discharge into a resource area
|
(b)
The following guidelines are intended to aid
the applicant in deciding which plan items must be submitted to the
Commission for review. For final clarification of what items will
be required for a given project, please contact the Conservation Commission
Office.
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Work Description
|
Plan Item Number
| ||
|---|---|---|---|
|
Work in Buffer
| |||
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Grading/landscaping activities on single-family
lot
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1 to 11
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Addition to single-family house
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1 to 11
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Single-family house with leach field
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1 to 13
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Subdivision
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1 to 13; 21 to 25
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Commercial/industrial
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1 to 13; 21 to 25
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Work in Resource Area
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Work in wetland
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1 to 11; 12 to 14
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Work in stream
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1 to 11; 14 to 20
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Single-family house with limited access
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1 to 20
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Highway work
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1 to 11
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14 to 16 possibly
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17 to 20
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21 to 25 possibly
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(c)
Engineering calculations.
[1]
Engineering calculations are required to show the effect of the proposed activity on soil and water. Calculations and watershed modeling shall normally be performed using a hyrograph analysis based on the techniques developed by the United States Department of Agriculture, Soil Conservation Service. Calculations shall be made that show the impact for two-year, ten-year and one-hundred-year storms using the SCS Type II or III twenty-four-hour rainfall or other storms consistent with Belchertown Planning Board policy (Chapter 270, Subdivision of Land, § 270-29). The calculations shall be prepared by a registered professional civil engineer or qualified hydrologist.
[2]
Engineering calculations are required to fully
support the design of compensatory flood storage areas and stormwater
management systems, including detention or retention basins and infiltration
systems.
(d)
Soil and vegetation data. This information is
required to describe alterations to and replication of resource areas.
(e)
Wildlife habitat evaluation. A wildlife habitat
evaluation will be required where alterations exceed the threshold
specified in 310 CMR 10.60.
E.
Public hearing.
(1)
The Commission shall hold a public hearing within
21 days from the receipt of an application for permit. Notice of the
public hearing will be provided in the Belchertown Sentinel or other
local paper in accordance with the Open Meeting Law[5] at the applicant's expense. Prior to issuing its permit,
the Commission may require the submission of additional data pertinent
to the application. The Commission may continue the hearing to receive
such information in accordance with Section 5 of the bylaw.[6]
F.
Permit. Within 21 days of the close of the hearing,
the Commission will issue a permit/order of conditions with conditions
to protect the interests as identified under the bylaw. The written
decision will be signed by a majority of the Commission and shall
be valid for three years. Permits written under the Belchertown Wetlands
Bylaw and regulations may be on the same form as the state regulations
or on Form D, whichever may be appropriate.[8] Permits shall be valid for three years.
(1)
Conditions may be for the construction period (e.g.,
straw bales for temporary erosion control) or may be in perpetuity
(e.g., permanent buffer strips for erosion control, water supply protection
and wildlife habitat). Conditions may be structural (e.g., hay bale
barrier for erosion control) or may require a specified standard of
performance (e.g., prevention of erosion).
(b)
Special conditions. A special set of conditions
will be imposed on all projects approved by the Belchertown Conservation
Commission where it is deemed that such conditions are necessary to
protect the values of wetlands, related water resources and adjoining
land areas under its jurisdiction.
(2)
Amended permits. If at any time after a permit has
been issued there is a change in the proposed activity, the applicant
or owner must notify the Commission, in writing, of the proposed changes
not less than 48 hours before a regularly scheduled meeting. No work
associated with these changes shall be conducted until the Commission
has reviewed the changes and issued a written decision. The person
making this request shall be notified by the Commission of its decision
within 21 days of the receipt of this request. The Commission may
determine that:
(a)
The changes represent a significant departure
from the original proposal and that the potential impacts of the new
proposal are sufficiently different from those of the original proposal
as to require the filing of a new application for permit.
(b)
The changes involve a moderate departure from
the original proposal and will require an amended permit. The Commission
shall publish newspaper notice (at the applicant's expense) and make
a decision on the request for an amended permit after a public hearing.
An amended permit must be filed at the Registry of Deeds with a marginal
reference to the original permit. The following may require an amended
permit:
(c)
The changes represent an insignificant change
in the original proposal and will have no likelihood of greater impact
on any wetland resource area. The person proposing these changes may
proceed with work upon written notification by the Commission.
(3)
Denials. If the Commission deems that the interests
stated in the bylaw are not adequately protected under the terms of
the applicant's proposal, the Commission may refuse to issue a permit.
When the Commission votes to deny a permit, it shall issue a written
decision.
[8]
Editor's Note: Form D is available in the
office of the Conservation Commission.
G.
Appeals. Any person aggrieved by the permit or decision
of the Conservation Commission, whether or not previously a party
to the proceeding, may appeal according to the Massachusetts General
Laws.
H.
Extensions of permits. See 310 CMR 10.05(8).
I.
Final release/certificate of compliance. Upon completion
of the work permitted, the applicant shall request, in writing, that
the final release/certificate of compliance be issued stating that
the work has been satisfactorily completed.
(1)
Upon written request by the applicant, a final release/certificate
of compliance may be issued within 21 days of receipt thereof and
shall certify that the activity or portions thereof described in the
application for permit and submitted plans have been completed in
compliance with the permit. The final release shall not be issued
until a site inspection is made by a member of the Commission and
shall be signed by a majority of the Commission. Final releases may
be combined with certificates of compliance issued under 310 CMR 10.05(6).
(2)
If the Commission determines, after review and inspection,
that the work has not been done in compliance with the permit, it
may refuse to issue a final release/certificate of compliance. A refusal
will be issued within 21 days of receipt of a request for a final
release, will be in writing and will specify the reasons for denial.
(3)
If the final permit contains conditions which continue
past the completion of the work, such as maintenance or monitoring,
the final release/certificate of compliance shall specify which, if
any, of such conditions shall continue.
(4)
The final release will be recorded in the Registry
of Deeds or Land Court. Certification of the recording shall be sent
to the Commission. Upon failure of the applicant to so record, the
Commission may do so.
J.
Recording in Registry of Deeds or Land Court.
(1)
The following forms issued by the Commission are required
to be recorded in the Hampshire County Registry of Deeds or the Land
Court, whichever is appropriate:
(2)
As proof of recording, the applicant must deliver
to the Commission the recording slip at the bottom of the permit,
extension permit or certificate of compliance. When required, proof
of recording of a determination of applicability shall be a copy of
the determination with recording number. No work can begin under an
order of conditions until proof of recording has been received by
the Commission. If the applicant fails to record in a timely manner
any of these documents (unless in accordance with exception below),
the Commission will record the order.
(3)
If the applicant desires to delay the recording of
the permit, he/she or she shall so state, in writing, to the Commission
the reasons for the delay and the estimated date of recording before
the close of the hearing. In no case shall any construction commence
unless and until a permit has been recorded.
K.
Performance guaranty. (Reserved)
See 310 CMR 10.06.
See 310 CMR 10.07.
[1]
Editor's Note: See MGL c. 30, §§ 61
through 62H.
A.
When the Conservation Commission determines that an
activity is in violation of the bylaw or a permit issued under the
bylaw, the Commission may:
B.
Violations include, but are not limited to:
C.
The Commission may issue an enforcement order under
MGL c. 131, § 40 in lieu of, or in addition to, an administrative
order under these regulations.
D.
An enforcement order issued by the Conservation Commission
shall be signed by a majority of the Commission. In a situation requiring
immediate action, it may be signed by a single member or agent of
the Commission if said enforcement order is ratified by a majority
of the members at the next scheduled meeting of the Commission.
E.
If a fine or adjustment of fine for a violation is
being considered, the Commission shall hold an administrative hearing
to discuss the violation and to give the landowner and/or individuals
responsible for the violation an opportunity to respond to the evidence
and circumstances. The Commission must give such parties at least
48 hours' notice, in writing, of the date, time and place of an administrative
hearing by certified mail or hand delivery to the last known address
on record in the Assessor's office. The Commission may grant a continuance,
at its discretion, upon appeal by the landowner stating in full the
reason for the request. If a majority of the Commission present at
the hearing finds that a violation has occurred, the landowner and/or
individual responsible for the violation may be fined not more than
$300 per violation. The amount of the fine per violation will be determined
by the Commission at the administrative hearing.
F.
The Commission shall develop guidelines for calculating
the appropriate amount of the fine.
G.
The Commission shall take into account the nature
of the violation, as follows:
(1)
Where remedial action is possible, each day or portion
thereof during which the violation continues or is repeated shall
constitute a separate offense, and each provision of the bylaw, regulations
or permit violated shall constitute a separate offense.
(2)
Where remedial action is not possible or advisable,
the Commission will decide what procedural or legal remedies to take.
H.
The notice of the fine and explanation thereof, including
the date or approximate date of the violation from which daily violations
are counted, will be sent, in writing, to the responsible landowner
and/or individual(s) responsible for the violation by certified mail
or hand delivery. The fine is payable to the Town of Belchertown within
21 days of the date of issuance of the notice.
I.
The Commission may accept a written plan with timetable
for full restoration and restitution of the violation and may then
withhold sending the notice of fine for a specified time period. If
satisfactory restitution is not made within a timely manner, the notice
of fine is retroactive.
A.
Introduction. See 310 CMR 10.51.
B.
Purpose. See 310 CMR 10.52.
C.
General provisions. See 310 CMR 10.53 and the following:
(1)
Any agricultural activity as defined by the Farm Assessment
Act, MGL c. 61A, exempt from the provisions of the Wetlands Protection
Act, MGL c. 131, § 40, and from the Wetlands Protection
Regulations, 310 CMR 10.00 (normal maintenance or improvement of land
in agricultural use), will also be exempt under the Belchertown Wetlands
Regulations.
(2)
Additionally, any agricultural activity as defined
by the Farm Assessment Act, MGL c. 61A, and on land not under the
jurisdiction of the Massachusetts Wetlands Protection Act and implementing
regulations (310 CMR 10.00) will be exempt from all local jurisdiction.
D.
Bank (naturally occurring banks and beaches). See
310 CMR 10.54.
E.
Freshwater wetlands. Freshwater wetlands include bordering vegetated wetlands, such as marshes, wet meadows, bogs and swamps, as defined in 310 CMR 10.55 and incorporated into these regulations as Subsection F of this section. They are areas of wetland vegetation where 50% or more of the vegetative community consists of obligate or faculative wetland plant species as included or identified in generally accepted scientific or technical publications. Freshwater wetlands also include isolated wetlands greater than 5,000 square feet in area.
F.
Bordering vegetated wetlands. See 310 CMR 10.55.
G.
Isolated wetlands.
(1)
Preamble. Isolated wetlands are freshwater wetlands
that do not border on creeks, rivers, streams, ponds and lakes. Isolated
wetlands are likely to be significant to public or private water supply,
groundwater supply, flood control, storm damage prevention, prevention
of pollution and the protection of wildlife habitat.
(a)
Isolated wetlands may be found either in areas
with low, flat topography or below sidehill seeps. These areas provide
temporary storage of water resulting from runoff, rising groundwater
or where groundwater breaks out of a slope forming a sidehill seep,
thereby providing for flood control and prevention of flood damage.
Alteration can result in the lateral displacement of retained water
into adjacent properties, resulting in modified drainage patterns
with the potential for property damage.
(b)
Isolated wetlands are areas where groundwater
may discharge to the surface either by a rising water table or from
a sidehill seep. Under some circumstances, surface water may discharge
to the groundwater in these areas, particularly where they are underlain
by pervious materials. Contaminants introduced into such areas, such
as septic system discharges, road salts, pesticides or herbicide,
find easy access into the groundwater and may contaminate private
or public water supplies.
(c)
Where such areas are underlain by pervious material
covered by a mat of organic peat or muck, they are likely to be significant
to prevention of pollution.
(d)
Isolated wetlands may provide important habitat
for wildlife. Isolated wetlands providing seasonal wetland habitats
are essential breeding sites for certain amphibians which require
isolated areas that generally flood in the spring and/or summer and
are free of fish predators. Many reptiles, birds and mammals depend
upon such isolated wetlands as a source of food.
(2)
Definition, critical characteristics and boundary.
Isolated wetlands are freshwater wetlands as defined in these regulations
that do not border on creeks, rivers, streams, ponds and lakes. Isolated
wetlands may occur in a depression or closed basin in otherwise flat
topography. In these areas, water may pool above the surface at least
once a year or may be contained in the top 18 inches of soil. In addition,
some isolated wetlands occur downslope of sidehill seeps, depending
on the topography, soils and water regime.
(a)
Isolated wetlands are areas of wetland vegetation
where at least 50% or more of the natural vegetative community must
consist of plants listed in the Massachusetts Wetlands Protection
Act or which are obligate or facultative wetland plant species as
included or identified in generally accepted scientific or technical
publications; and
(b)
The isolated wetland must cover an area that
is 5,000 square feet or greater.
(3)
Presumption. Where a proposed activity involves filling,
dredging or altering of an isolated wetland, the Commission shall
presume that such an area is significant to the interests specified
in the preamble above. This presumption is rebuttable and may be overcome
only by a clear showing that said land does not play a role in said
interests. In the event that the presumption is deemed to have been
overcome, the Commission shall make a written determination to this
effect, setting forth its grounds.
(4)
Performance standards.
(a)
A proposed project which may result in alteration
of an isolated wetland shall not result in the following:
[1]
Flood damage due to filling which causes lateral
displacement of water that would otherwise be confined within said
area.
[2]
An adverse effect on public and private water
supply or groundwater supply, where said area is underlain by pervious
material.
[3]
An adverse effect on the capacity of said area
to prevent pollution of the groundwater, where the area is underlain
by pervious material which in turn is covered by a mat of organic
peat or muck.
[4]
An impairment of its capacity to provide important
wildlife habitat.
(b)
No project may be permitted which will have
any adverse effect on specified habitat sites of rare vertebrate or
invertebrate species as identified on the Natural Heritage and Endangered
Species Estimated Habitat Maps on file with the Commission and identified
under Section 10.59 (Rare Species) of the regulations of the State
Wetlands Protection Act (310 CMR 10.00).
H.
Land under water bodies and waterways (under any creek, river, stream, pond or lake). See 310 CMR 10.56, except as where the definition of "pond" (310 CMR 10.04 Pond) applies. In these situations, substitute the definition of "pond" under § 290-6, which defines "pond" as having a surface area of at least 5,000 square feet.
I.
Land subject to flooding. See 310 CMR 10.57.
J.
Variance. See 310 CMR 10.58.
K.
Rare species. See 310 CMR 10.59.
L.
Wildlife habitat evaluations. See 310 CMR 10.60.
A.
Preamble.
(1)
Ephemeral pools are usually isolated depressions or
closed basins that serve, in most years, as ponding areas for runoff
or high groundwater that has risen to the surface. Ephemeral pools
are, by definition, of seasonal duration; accordingly, the degree
of wetness necessary for the establishment of a typical wetland plant
community does not exist in most cases. Since the temporary nature
of ephemeral pools precludes the presence of fish species, these areas
are able to support viable populations of several amphibian and invertebrate
species which are highly vulnerable to fish predation. The presence
of a sustaining population of any species of fish at a site in question
would rule it out as an ephemeral pool.
(2)
Ephemeral pools are not located within resource areas
under jurisdiction of the Massachusetts Wetlands Protection Act but
serve as vernal pool habitat. Where one of these ponded areas is shown
to be vernal pool habitat, it shall be considered an ephemeral pool
under these regulations and presumed significant to the protection
of wildlife habitat.
B.
Definition, critical characteristics and boundary.
(1)
Definition. Ephemeral pools are isolated depressions
or closed basins which temporarily confine water during periods of
high water table and high input from spring runoff, snowmelt or heavy
precipitation and serve as vernal pool habitat. They are essential
breeding sites for certain amphibians which require isolated areas
that are generally flooded for at least two continuous months in the
spring and/or summer and are free from fish predators. Most of these
amphibians remain near the breeding pool during the remainder of their
life cycle. Many reptiles, birds and mammals also feed here.
(2)
Critical characteristics.
(a)
Temporality. Ephemeral pools generally fill
up during the spring rains and snowmelt, dry up during the summer
and may fill again during the fall rains or during summer thundershowers.
An area where water stands on a year-round basis will not be considered
to be a temporary wetland (it may be an isolated wetland). The cycle
of filling and drying may occasionally miss a year due to dry conditions.
(b)
Isolated depressions. Shallow areas of no minimum
size where water ponds in response to flooding, high groundwater or
inputs from rain and snow meltwater and which lack permanent inlets
or outlets.
(c)
Organic accumulation. The presence of a well-developed
organic layer is a feature of most ephemeral pools. These pools have
generally existed since the end of the glacial period and will probably
continue in their semi-open condition for many more thousands of years
unless artificially altered. These pools act as traps for organic
matter, especially during the autumn when they trap quantities of
airborne leaves. The presence of water-stained leaves in a depression
which is otherwise dry is a good indicator that the area temporarily
serves to pool water.
(3)
Boundary. Because ephemeral pools are dry much of
the year, it may be necessary to determine their boundaries using
indicators other than pooled water. Further, because the area inundated
varies so widely from year to year, pooled water is not a good indicator
of extent. An ephemeral pool boundary shall be determined using a
combination of pooled water, if present, and the presence of a depression
covered by water-soaked leaves, water marks or lack of moss on trees,
buttressed tree trunks, shallow-rooted trees or adventitious roots
on trees. Other indicators of the temporary pooling of water, such
as the presence of caddis fly cases or fingernail or pea clams, can
also be used. The burden of proof for identification of an ephemeral
pool shall be upon the Conservation Commission. Identification must
be made prior to the close of a public hearing and shall follow the
guidelines for vernal pool certification criteria established by the
Massachusetts Division of Fisheries and Wildlife. In the case of disputes,
hydrological calculations using the two-year storm may be used to
provide a determination of the boundary of an ephemeral pool.
C.
Presumption. Where a proposed activity involves the
removing, filling, dredging or altering of an ephemeral pool, the
Conservation Commission shall presume that such an area is significant
to the protection of wildlife habitat, particularly amphibian breeding
habitat. This presumption is rebuttable and may be overcome upon a
clear showing that the ephemeral pool does not play a role in the
protection of wildlife habitat. In the event that the presumption
is deemed to have been overcome, the Commission shall make a written
determination to this effect, setting forth its grounds.
D.
General performance standards. A proposed project
in a ephemeral pool shall not result in the following:
(1)
Any impairment of the capacity of the ephemeral pool,
as well as the area within 100 feet of the mean annual boundary of
the ephemeral pool, to provide wildlife habitat. Alterations may be
permitted if they will have no adverse effects on wildlife habitat,
as determined by the procedures listed in 310 CMR 10.60.
(2)
Endangering state-listed species, which shall be protected
under the procedures listed in 310 CMR 10.59.
A.
Preamble. It is the Commission's experience that any
project undertaken in close proximity to a wetland resource area has
a high likelihood of resulting in some alteration of that area, either
immediately, as a consequence of construction, or over a longer period
of time, as a consequence of daily operation of the completed project.
These negative impacts from construction, as well as long-term use,
in the buffer zone can include erosion, siltation, loss of groundwater
recharge, poor water quality characteristics and loss of wildlife
habitat. The Commission's prime concern in the buffer zone is the
ultimate impact on the adjacent wetland resource area from both the
construction and use phases of the proposed activity. The policy of
the Commission is to have the applicant maintain a strip of continuous,
undisturbed, indigenous vegetative cover in the buffer zone adjacent
to the resource area to reduce erosion and pollution to the adjacent
wetland resource area, maintain water quality, improve water recharge
and provide wildlife habitat.
B.
Definition and critical characteristics.
(1)
Definition. The buffer zone is that area of land extending 100 feet horizontally outward from the boundary of any resource area specified in § 290-4A.
(2)
Critical characteristics.
(a)
Where surface runoff or groundwater from the
buffer zone drains toward the resource area, vegetative cover and
soils may filter runoff and provide uptake or renovation of pollutants
from adjacent areas, thereby protecting water quality within the resource
area. The vegetation and soils may slow surface runoff and permit
infiltration of precipitation, maintaining the hydrologic regime to
which the resource area is adapted.
(b)
Indigenous vegetation is often used by wildlife
for important functions, such as nesting, feeding and protective cover
sites. Dense understory in wooded areas may provide nesting sites,
travel corridors and protective cover for a wide variety of fauna.
Cutting of vegetation, especially canopy trees, alters the physical
environment by allowing more light and air and may increase temperatures
during the summer and decrease temperatures in winter.
C.
Presumption. A continuous twenty-five-foot vegetated
buffer strip between development activities in the buffer zone and
the resource area to be protected shall be presumed to be significant
to the interests specified in the preamble above. This is rebuttable
and may be overcome upon a clear showing that said land will not play
a role in the protection of said interests. In the event that the
presumption is deemed to have been overcome, the issuing authority
shall make a written determination to this effect, setting forth the
grounds.
(1)
The following activities within the twenty-five-foot
buffer strip shall be presumed not to be significant to interests
specified in the preamble above:
(a)
Ongoing landscaping activities on existing developed
lots (continued mowing, landscaped plantings and selective pruning),
provided that soil is not exposed to erosion, there is no change in
grade and sod cover or natural litter layer is maintained.
(b)
Construction or installation of fences or structures
not requiring a building permit.
(c)
Construction of footpaths of minimum size.
(2)
Water-dependent activities, limited projects approved
by the Commission and activities where there is no practicable alternative
may be allowed by the Commission where impacts are minimized and mitigated,
as necessary. As with any work in the buffer zone, these activities
still require the filing of a request for determination of applicability
or notice of intent, whichever is appropriate under these regulations.
D.
Performance standards.
(1)
Any work within the buffer zone shall not result in
alteration of any resource area, or, if work within the buffer zone
which alters a resource area is permitted by the Commission, the alteration
of the resource area shall comply with the applicable performance
requirements for the altered resource area and any other conditions
the Commission may require to enforce those performance requirements.
(2)
Unless as specified above, a continuous twenty-five-foot
no-disturbance buffer strip, untouched and in its natural state, shall
be left between development activities in the buffer zone and the
resource area to be protected.
(3)
Any drainage outletting in the buffer zone shall be
shown to be nonerosive and shall demonstrate that there is no significant
change in off-site runoff from the proposed work.
